Eaton v. McIntire

34 A. 525, 88 Me. 578, 1896 Me. LEXIS 55

• Court: Supreme Judicial Court of Maine
• Decided: March 6, 1896
• Status: Published

Opinion

Walton, J.

This is an action of trover against a railroad conductor for the alleged conversion of a mileage book. The plaintiff handed his mileage book to the conductor and requested him to take his fare from the back part of it. The conductor complied with the request in part and disregarded it in part. That is, he took part of the plaintiff’s fare from the back part of the book and part from the front. The plaintiff claims that he had a right to determine from which part of the book his fare should be taken, and that the act of the conductor in detaching coupons from the front part of the book, contrary to his (the plaintiff’s) request, was an unlawful exercise of dominion over the book : and, in law, a conversion of it to the defendant’s use.

We do not think this proposition can be sustained. We think it was the right of the conductor to determine from what part or parts of the book he would take the plaintiff’s fare. The contract of the parties annexed to the book, and signed by the plaintiff, expressly provides that the coupons shall be detached by the conductor, and we think this fairly implies that the conductor shall have the right to determine from what part or parts of the book they shall be taken. The work of collecting fares must sometimes be performed very rapidly; and to compel conductors to listen to the requests of passengers as to the manner in which the work shall be performed would' necessarily be attended with some inconvenience and delay; and, so far as we can discover, with very little, if any, benefit to the passengers. It therefore seems to us that upon principle the right to determine from what part or parts of a railroad mileage book a sufficient number of coupons shall be taken to pay a passenger’s fare, ought to belong to the conductor. The act is his, and it seems to us that, upon principle, the choice should be his. And this conclusion is supported by what has heretofore been customary. The evidence shows what our own observation confirms, that ever since these mileage books came into use, the custom has been for the conductor to detach a, sufficient number of coupons to pay the passenger’s fare from the front part of the book. Not always taking the entire number consecutively ; but by detaching whole leaves and such fractions of leaves as he deems best calculated to make the computation easy and the removal convenient. And what is customary is generally lawful. Custom makes law. As said by Chief Justice Whitman more than half a century ago, and confirmed by a multitude of cases since that time, " every contract must have an interpretation governed in some measure by the subject matter to which it relates ; and, at the same time, with reference to.any known usage connected with it.” Robinson v. Fiske, 25 Maine, 401.

Judgment for defendant.